Pandemic Restrictions & Religious Freedom

Why the Supreme Court got it right in overruling California’s draconian lockdown rules.

The United States has been dealing with the COVID-19 pandemic for over a year now. Some states — including my own, New Jersey — have been in varying stages of lockdown or otherwise heavily restricted for many of those past 365 days. California is a perhaps the exemplar of this lockdown approach, having drastically curtailed civil rights for millions of its citizens under the guise of Governor Gavin Newsom’s “emergency powers”. Just a week and a half ago, those restrictions — in California and by proxy elsewhere — were dealt a crushing blow by a majority of the Supreme Court. Much of the coverage of this important decision has been framed negatively, focusing on the religiosity of the petitioners, the fact that the decision was a split one, or decrying the Court’s ‘new direction’ after the death of Justice Ruth Bader Ginsburg. Some pundits have even gone as far as claiming that the Court’s decision “Doubles Down On Religious Rights Amid Pandemic,” or that the majority had ulterior motives for its decision, as they are all “ultraconservatives” whose decision “may kill people”. This is all utter nonsense. The Supreme Court absolutely made the right decision in this case when it comes to religious rights under the First Amendment and the government’s power to curtail them in times of crisis.

The case, South Bay United Pentecostal Church vs. Gavin Newsom, was an application by a California church for suspension of the state’s prohibition on indoor worship services, something they claimed was discriminatory on the basis of religious faith versus secular activity. To explain in brief, California has chosen to use a tier-based system for its pandemic restrictions, with different areas falling into different tiers based on certain markers of transmission or caseloads. In the most restrictive tier (Tier 1), the state does not allow any in-person worship whatsoever, while secular businesses deemed “essential” could operate at restricted capacity. The Court enjoined California from enforcing this specific rule, while still allowing many of the restrictions on religious practice in other tiers to go untouched. Some Justices would have enjoined all of these rules, including the categorical ban on singing, but those were kept in place for the time being, at least until the Court sees this case fully on the merits; this was simply an application for injunctive relief, essentially halting enforcement of rules until they can be properly adjudicated. As stated above, much of the mainstream press framed this decision as being irresponsible, reckless, and too cozy with religious interests. This framing is wrong. In fact, the Court should have gone farther and enjoined all of California’s discriminatory rules. The opinion of Justice Gorsuch and the relevant case law background is worth looking into in more detail to better understand this perspective.

In religious liberty cases, the government must satisfy a standard known as ‘strict scrutiny’. This means that restrictions on religious freedom must be facially neutral, generally applicable, and are “the least restrictive means of achieving a compelling government interest.” (All quotes from hereon out, unless otherwise stated, are drawn from the Supreme Court opinions linked above.) California meets none of these standards. Their restrictions specifically single out religious services, something the state does not deny, and the heavy-handed nature of these regulations does not seem to support the idea that they are “the least restrictive means” possible to achieve a public health goal. Justice Gorsuch lists several factors which California claimed set religious practice apart from secular activity: “(1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing.” In each of the first three factors, California utterly fails to justify its conduct as non-discriminatory. The state allows large crowds from different households to travel on public transit, has no concern for close proximity involved in businesses like hair salons, and does not enforce time limits on secular activities like shopping. It also has no defense for why it does not allow religious services to open with certain mitigation plans that have been approved for secular use, including masks, physical distancing, testing, and improved ventilation. Singing, which has been scientifically linked to greater particulate spread and thus viral transmission, seems like a reasonable thing to restrict. Yet California fails here too; entertainment industry work, including film and television, has been exempted from these regulations. It is patently unconstitutional to privilege secular business activities — no matter how well connected they are politically — over the religious rights protected by the First Amendment.

I don’t have a personal stake in this fight; I’m not a practitioner of a religious faith and have not been impacted by these particular restrictions or others like them in states like New York. What I do have an interest in, though, is the protection of our natural rights as laid out in the American Constitution. It is absolutely reasonable to make states and local governments treat religious activity the same way that they treat secular activity; churches, synagogues, and mosques must not be forced to close when manicurists, electronics stores, and liquor stores remain open. (Sidebar: this is not at all an argument for those secular businesses to be closed; on the contrary, both religious and secular activities should be open. Just look at Florida for an example of how this can be done right.) Not only can religious activity not be treated worse than non-religious activity, it cannot be restricted when other First Amendment rights are specially privileged. In this case, I’m specifically thinking of the massive protests on behalf of racial justice which spread throughout this country last summer. California did not restrict these protests — some local and state officials actually joined in — and supported them even after many turned violent. It is very difficult to justify shutting down a peaceful church service at the same time as the government is condoning and excusing violent riots stemming from mass protests. Why should singing and chanting be allowed in a crowd clamoring for racial justice when it is disallowed in a much smaller group glorifying their God?

In-person, socially-distanced Mass at a Catholic church in the Philadelphia archdiocese. (Ximena Conde/WHYY News)

But according to those who defend California’s rules, we’re in the midst of a terrible public health crisis and must defer to the emergency powers of the government to stem the tide of transmission! Isn’t that enough of a reason to allow these sorts of painful restrictions? Shouldn’t we listen to Justice Kagan when she writes that “Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic.”? These justifications have been used by defenders of the lockdown approach for nearly a full year now. They are far less convincing now than they were then. The entire concept of ’emergency powers’ assumes that emergencies are one thing: temporary. If not, emergency powers granted to the executive would simply be an end-run around the legislature and the public representation and accountability intrinsic to that body. The historical origins of emergency powers are ironic in this regard; the Roman Republic called those men it invested with expansive emergency powers ‘dictators’, the last of which was a man by the name of Julius Caesar. Many blue state governors like Gavin Newsom of California, Phil Murphy of New Jersey, and Andrew Cuomo of New York are embracing that dictatorial mindset, one which is contrary to the American system. Emergency powers should be removed from these people as rapidly as possible. Thankfully, that seems to be an idea gaining traction, at least in New York. Justice Gorsuch describes the absurdity of these year-long emergency powers eloquently, saying:

No doubt, California will argue on remand, as it has before, that its prohibitions are merely temporary because vaccinations are underway. But the State’s “temporary” ban on indoor worship has been in place since August 2020, and applied routinely since March. California no longer asks its movie studios, malls, and manicurists to wait. And one could be forgiven for doubting its asserted timeline. Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner. As this crisis enters its second year—and hovers over a second Lent, a second Passover, and a second Ramadan—it is too late for the State to defend extreme measures with claims of temporary exigency, if it ever could. Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Overall, this whole kerfuffle over the Supreme Court’s (correct) decision in the California case reveals a few things about broader American society and politics. It is clear to me that there is — among certain very vocal segments of the secular left — a profound and fundamental lack of understanding and empathy for serious, devout religious practice. A response I often see when defending in-person religious practice is “Why can’t they just worship remotely on Zoom? I talk to my family that way, so what’s the difference?” This sort of question showcases an ignorance of religion (or a secular-ish Protestant view) that far too many of our fellow citizens have. The question, given its prevalence, is worth answering. Many people cannot satisfy the tenets of their faith over Zoom, especially Catholics and Orthodox Jews. For Catholics, receiving the Eucharist — seen as the very Body and Blood of Jesus Christ — is the center of the Mass and the point around which all worship revolves. One cannot receive the Eucharist remotely, or participate in the miracle of transubstantiation over a computer screen. For Orthodox Jews, prayers cannot be offered to God or worship joined without a minyan, defined as a group of at least 10 men. Shutting down synagogues entirely obviously disallows this form of worship. I think that the ignorance shown by so many when discussing this important issue is just that: ignorance. But for some Americans, I think this stems from a genuine antipathy for religion and the faithful. Thankfully our Constitution protects the rights of conscience for the devout, but all of us who value liberty must defend these rights if we wish to see them respected — even those of us who do not take advantage of the protections offered.

These restrictions and the attitude towards them is emblematic of a broader societal problem: a growing illiberal assault on crucial civil rights like those enumerated in the first several Amendments to our Constitution. This attack comes from the right with respect to the rights of criminals and the accused, but it far more often comes from the left today. Many progressives decry the freedoms protected by the First Amendment (religious expression, free speech, association rights), the Second Amendment (private gun ownership), and the Fourth and Fifth Amendments (due process rights). I, for one, am quite glad to see the Supreme Court pushing back on this illiberality and asserting that the rights protected by the Constitution are inviolable and sacred. Given the current administration’s conciliatory approach with his party’s hardcore progressive wing, actions like this from the highest court in the land will certainly be necessary.

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